Ask Rita: Is being a surrogate mother a profession?

Ask Rita explores whether an employee’s work as a surrogate qualifies as a second job that is in conflict with her employer’s agency.

Ask Rita: Is being a surrogate mother a profession?
4 mins read

Surrogate mothers enjoy the same protection as any other pregnant employee.

Dear Rita:

Over a year ago one of our employees at our preschool program became a surrogate mother. She was paid to cover her expenses for carrying the baby, and she had a beautiful baby boy who is now at his new home.

Now, only eight months later, she’s doing it again! Do we have to give her the same leave and job protection that we would give any other pregnant woman? And since she is, in effect, getting paid for being pregnant, does this qualify as a second job that is in conflict with her position with our agency?

A New One On Me

Dear A New One On Me:

What I don’t know is the etiquette on baby showers for surrogate moms! What I do know is this: pregnant surrogate mothers enjoy the same protection as any other pregnant employee. As you may know, nonprofits with 50 or more employees (working within 75 miles of each other) are covered under the federal Family Medical Leave Act (FMLA).

If the employee works at least 1,250 hours before taking a second leave of absence, she is entitled to unpaid leave for up to three months, continued medical benefits during the leave, and has the right to return to the same or similar position.

In addition, many states offer a pregnant woman additional leave beyond the three-month FMLA leave and guarantee return to the exact same job.

These more generous state laws can apply to your nonprofit if you have as few as five employees. So, in addition to the FMLA requirements, be sure to check your state laws as well as your own personnel policies.

In terms of the part-time job question, pregnancy is considered a condition, not a job (even when there is compensation involved). All pregnant women should be treated the same, regardless of why they are pregnant or what will happen to the baby.

And, no, the pregnant woman has not taken a second job that conflicts with her current position.

Now as for that baby shower . . .

About the Author

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Ellen Aldridge, J.D. is an Employment Risk Manager for Nonprofits Insurance Alliance (NIA). Ellen has practiced labor and employment law for over 30 years as a litigator, negotiator, and adviser. Now in her 12th year with NIA, Ellen brings her experience to assist nonprofits in managing employment law risks and implementing best practices to motivate and support employees. Ellen received her B.A. in Government from University of San Francisco and her J.D. from Santa Clara University. On the weekends, you can find her in her garden.

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Pamela Fyfe is an Employment Risk Manager for the Nonprofits Insurance Alliance. In her position she helps nonprofits avoid potential employment claims and reduce the possibility of future claims. Before joining the Nonprofits Insurance Alliance Group, she practiced employment law for more than 25 years — representing management in wrongful termination, discrimination and sexual harassment cases. She admits to possibly having sneaked online at work to see her first grandchild — Mara Adeline — who lives in London.

Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. Views represented in Blue Avocado do not necessarily express the opinion of the publication or its publisher.

9 thoughts on “Ask Rita: Is being a surrogate mother a profession?

  1. Are they still entitled to time off/family leave to be with the baby? even if another family now has the baby?

  2. This is so utterly offensive to me and an example of the unfriendly environment women must endure to earn a living while pregnant or after giving birth in the American workforce.

  3. How would this be any different from a woman who was pregnant with her own baby? I think this matter is not the employers’ purvey from an HR point of view. People are quick to judge others, as in this case someone thinking that the woman who is pregnant is doing it to get a leg up or to abuse the system. Being a surrogate is a noble thing to do for someone else who, for one reason or another, can’t biologically conceive.

  4. I totally understand where “A New One on Me” is coming from. This employee has chosen to become pregnant and is being justly compensated for doing so. Whether it is a noble act of kindness is not in question. She could (nonintentionally) be putting a strain on a small, struggling nonprofit by being supported with benefits while receiving unpaid time off for 3 months, every 8 months. What is the organization supposed to do for those 3 months? Hire and train a temp?

    Allow me to preface my comment with:
    I’m a woman.
    I run two nonprofits.
    No, I’m not lying.

  5. I think its non sensical for her to be provided with benefits and her position still in effect after she has the baby. because from that perspective..hypothetically she could get pregnant over and over for the rest of her life and that small non profit is expected to pay for her lazy ass? i dont care if shes doing it to abuse the system or be noble. you have responsibilities to your job..and one of those responsibilities is to do the damn job.shes not getting pregnant with a loved one ..shes using her body as a farm to grow babies. id say thats a second job no?its on purpose and dilberate..system is screwed

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